Industry attorney David Oxenford has laid out some of the main points of the webcasters’ and broadcasters’ appeals briefings that were filed within the last week and mentioned in coverage such as the recent Boston Globe article (see RAIN here). There were four briefs filed: a combined brief from large and small commercial webcasters (DiMA members plus Accuradio, Radioio, Digitally Imported Radio and Radio Paradise); one from commercial broadcasters (Bonneville, the NAB, and the National Religious Broadcasters Association); one from a collection of non-commercial broadcasters (college radio, NPR, and non-comm religious broadcasters); and a brief from Royalty Logic, a SoundExchange competitor. Oxenford boils down appellants’ claims as: (1) CRB failed to consider a flat-fee option, (2) CRB did not adopt a flat-fee for non-comms, even though SoundExchange and NPR had negotiated one, (3) CRB held that small commercial webcasters weren’t really concerned about a “percentage of revenue” option, (4) the $500 minimum fee is arbitrary, (5) the use of on-demand service agreements as a basis for the non-interactive webcast royalty determination, and (6) CRB decided it couldn’t craft a compromise decision but had to pick one side as “the winner” and adopt its plan. Oxenford explains the briefs will be answered by the Department of Justice (which defends the CRB) and SoundExchange. The process will continue for several months, followed by oral arguments which may not take place until fall. It’s very possible there will not be a final appeal decision until 2009. Read David Oxenford’s post in the BroadcastLawBlog here.

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